Citation Nr: 0202027	
Decision Date: 03/01/02    Archive Date: 03/05/02

DOCKET NO.  01-08 911	)	DATE
	)
	)

THE ISSUE

Whether clear and unmistakable error (CUE) exists in a Board 
of Veterans' Appeals (Board) decision dated March 26, 1987.

(The issue of entitlement to an evaluation in excess of 10 
percent for bilateral chondromalacia during the period from 
June 1, 1986 to January 19, 1994, will be the subject of a 
separate decision of the Board.)


REPRESENTATION

Moving Party represented by:  Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Pitts, Associate Counsel


INTRODUCTION

The Moving Party had active service from January 1980 to 
April 1984.

In September 2001, the Moving Party, through his 
representative, filed a statement in lieu of VA Form 1-646, 
Statement of Accredited Representative in Appealed Case, 
which is construed as a motion for review on grounds of CUE 
of the Board of Veterans' Appeals decision dated March 26, 
1987 (Motion).


FINDINGS OF FACT

1.  In a March 26, 1987 decision, the Board denied the Moving 
Party's appeal of a March 1986 rating decision reducing a 
combined 20 percent evaluation for right and left knee 
disabilities to 10 percent (which reduced evaluation was 
characterized in an implementing rating decision of June 1986 
as separate evaluations of 10 percent for the right knee 
disability and noncompensable for the left).

2.  The Moving Party has not pointed to an error that 
manifestly changed the outcome of the March 26, 1987 Board 
decision.


CONCLUSION OF LAW

The March 26, 1987 decision of the Board, did not contain 
clear and unmistakable error.  38 U.S.C.A. §§ 5109A, 7104, 
7111 (West Supp. 2001); 38 C.F.R. §§ 20.1400, 20.1403 (2001).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

i.  Background

In March 1986, the RO issued a rating decision proposing the 
reduction of a combined evaluation for the Moving Party's 
right and left knee disabilities from 20 to 10 percent.  The 
rating decision and separate notice thereof were provided to 
the Moving Party in March 1986.  He filed a notice of 
disagreement with this rating decision subsequently in March 
1986.  Pursuant to the regulation governing rating 
reductions, 38 C.F.R. § 3.105(e) (1985), the RO issued in 
June 1986 a rating decision in which the reduced combined 
evaluation was made effective as of June 1, 1986.  The June 
1986 rating decision characterized the reduced combined 
evaluation as one comprised of a 10 percent rating for the 
right knee disability and a noncompensable rating for the 
left.  The Moving Party perfected his appeal to the Board by 
filing a VA Form 9, Appeal to Board of Veterans' Appeals, 
later in June 1986.

The Board issued a decision on the appeal on March 26, 1987.  
The Board determined that evaluations in excess of 10 percent 
and noncompensable, respectively, for the right and left knee 
disabilities from June 1, 1986 were not warranted by the 
evidence of record.  Thus, the Board upheld the disability 
evaluation proposed by March 1986 rating decision (as 
implemented by the rating decision of June 1986).  While the 
Board characterized the issue as "entitlement to an increased 
evaluation" the Board took note of the reduction and 
considered the propriety of the current evaluation.  It did 
not explicitly consider the provisions of 38 C.F.R. §§ 3.105, 
3.344 (2001) referable to rating reductions.

At the time of the March 26, 1987 Board decision, pertinent 
evidence of record included the Moving Party's service 
medical records.  These showed that the Moving Party had been 
diagnosed with, and treated for, chondromalacia of the right 
patella and loose body, right knee.  He was admitted to the 
United States Naval Hospital in Newport, Rhode Island in July 
1983 for surgery, remaining there for one week.  His 
diagnoses and treatment are described in a Medical Board 
report dated in October 1983.  A lateral "retinacular 
release" was performed, and subsequently, a medial arthrotomy 
and shaving of the entire medial patellar facet, which was 
noted to have an extremely irregular and abnormal degree of 
chondromalacia.  

A small cartilaginous loose body was also found and removed.  
At the conclusion of his hospital stay, the Moving Party was 
found to be fully ambulatory and not limping and his surgical 
wounds to be healing well.  He was observed to have minimal 
retropatellar crepitus on the right side but no right knee 
effusion.  His right knee range of motion was "approximately 
0 degrees extension to approximately 150 degrees of flexion."  
His discharge diagnoses were chondromalacia, medial patellar 
facet, right knee and loose body, right knee.  The Medical 
Board recommended in an October 1983 report that because he 
was still convalescing from the surgery, he be given six 
months of limited duty ashore "not to include long standing, 
running, jumping or physical fitness testing" and that he 
undergo regular physical therapy.

In December 1983, the question of the Moving Party's fitness 
for duty was referred to the Physical Evaluation Board.  A 
report prepared in January 1984 indicates that the Moving 
Party was given regular physical therapy for his right knee 
from August 1983 to January 1984.  His initial range of 
motion in the right knee, measured in August 1983, was 20-85 
degrees.  Later in August 1983, this range of motion had 
increased to 10-110 degrees.  At the end of the course of 
therapy, it was reported that the Moving Party displayed 
right knee range of motion "lack[ing] less than 5° to full 
flexion," "full extension," and right knee effusion.  In a 
Notice to Member of Recommended Findings dated in January 
1984, the Physical Evaluation Board concluded that the Moving 
Party had recovered his fitness for duty. 

The report of the Moving Party's separation examination, 
conducted in January 1984, notes in addition to the right 
knee chondromalacia, status post medial arthrotomy, a 
contusion of the left knee.  Treatment records prepared one 
day before the separation examination document complaints of 
left knee pain and a diagnosis of left knee chondromalacia.  
No further treatment of the left knee is reflected in the 
service medical records.  

Also included in the claims file at the time of the March 26, 
1987 decision of the Board, were records from Goddard 
Memorial Hospital showing that in September 1984, after 
having complained of persistent knee pain and a persistent 
sensation that his knee caps were giving way, the Moving 
Party underwent right and left knee arthroscopies and a right 
knee patella shaving.  The arthroscopy of the right knee 
revealed extreme damage to the medial facet of the patella 
involving loss of a great deal of soft tissue and cartilage.  
The area was cleaned out and smoothed.  The findings 
resulting from arthroscopy of the left knee were negative 
except for a small area of chondromalacia on the medial 
aspect of the patella.  

The report of a VA examination performed in January 1985 was 
also of record at the time of the March 26, 1987 decision of 
the Board.  It documents that the Moving Party complained 
that he was having pain in both knees when climbing stairs or 
walking short distances.  He gave his current occupation as 
that of truck driver.  The examiner identified no 
instability, locking, or crepitus in the left knee, which was 
found to be within normal limits.  

The right knee was observed to display two-plus crepitus but 
no swelling, inflammation, effusion, instability, or locking.  
The patella was freely movable.  No muscle atrophy was 
identified.  There was minimal crepitus and minimal pain with 
compression of each patella.  The Moving Party exhibited no 
gait abnormalities.  He was able to walk on his heels and 
toes and to squat normally, but he was observed to do so with 
obvious discomfort.  A well-healed surgical scar on the right 
knee was noted in the examination report.  X-rays of both 
knees revealed normal bones and soft tissues.  The diagnosis 
rendered for each knee was chondromalacia.

In addition, at the time of the March 26, 1987 decision of 
the Board, the report of a VA examination conducted in 
January 1986 was on file.  It documents that the Moving Party 
complained of having pain in both knees, especially the 
right, when he would bend, walk, or engage in other weight 
bearing and stated that he currently worked in "water works."  
The examiner found the left knee to be within normal limits, 
with full range of motion, no crepitus or instability, and 
normal gait.  

The right knee, which was observed to have a well-healed 
surgical scar on the lateral aspect, manifested two-plus 
crepitus but no swelling, instability, inflammation, locking, 
or effusion.  The patella was found to be freely movable with 
excellent muscle development and no atrophy.  It was reported 
that the Moving Party declined x-rays.  The examination 
resulted in a diagnosis of bilateral chondromalacia patellae 
with post-operative residuals in the right knee.

The record at the time of the March 26, 1987 decision of the 
Board also included a letter dated in April 1986 by R. 
Hawkins, M.D.  Dr. Hawkins reported that the Moving Party 
walked with a normal gait but had marked tenderness with 
compression of the patellofemoral joint of the right knee.  
Suprapatellar tenderness of the right knee was also 
identified.  The left knee was assessed as normal.  The 
Moving Party was found to have no ligamentous instability or 
knee joint effusion.  X-ray findings were characterized as 
within normal limits except for some irregularity of the 
surface of the right patella where it met the femur; the 
radiologist's impression was patellofemoral chondromalacia 
with probable early patellofemoral arthritis of the right 
knee.  Dr. Hawkins observed that the Moving Party had 
considerable disability which had worsened over the past few 
years despite aggressive treatment with surgery.

The record at the time of the March 26, 1987 decision of the 
Board also contained documentation of right knee arthroscopy 
performed in June 1986 at Burbank Hospital.  Arthroscopy with 
arthroscopic abrasion arthroplasty of the patella and 
synovectomy of the parapatellar region of the right knee was 
performed.  Operative findings of extensive chondromalacia 
were reported.  The post-operative diagnosis was 
osteoarthritis of the right patella with synovitis.  

At the time of the Board decision of March 26, 1987, the 
claims file also contained the report of a July 1986 VA 
examination.  X-rays taken in connection with the examination 
revealed no change in the knees since January 1985--both the 
bones and soft tissues appeared normal.  The Moving Party 
stated that he had difficulty with both knees when climbing 
stairs, squatting, or kneeling and would experience fatigue 
from these activities.  He also complained of constant 
popping, grinding, and pain in his knees.  He gave his 
current occupation as that of plumber.  It was noted that the 
Moving Party had undergone arthroscopy on his right knee in 
June 1986--the presence of a scar from the procedure was 
noted--and was using a cane, experiencing pain, and walking 
with a marked limp as a result.

The examiner reported that the right knee had one-plus 
crepitus but no apparent swelling, tenderness, effusion, 
instability, or locking.  

The right knee range of motion was reported to be between 60 
and 0 degrees.  It was noted that the patella appeared to be 
normal but that the quadriceps muscles were possibly weak to 
some degree.  The left knee had one-plus crepitus.  Left knee 
range of motion was reported to be between 0 and 140 degrees.  
The patella appeared to be normal and freely movable.  The 
examiner reported that no swelling, tenderness, effusion, 
locking, or instability of the left knee was found, nor 
muscle weakness or atrophy associated with the left knee.  
The examination resulted in diagnoses of chondromalacia 
patellae for the left knee and chondromalacia patellae, post-
operative scar, recent arthroscopic surgery, and severe 
osteoarthritis for the right knee.  

In two letters dated in June and September, 1986, 
respectively, that were also of record at the time of the 
March 26, 1987 decision of the Board, R. Hawkins, M.D., 
reported that the Moving Party had severe osteoarthritis of 
the right knee and very similar symptoms in the left knee.  
He opined that these conditions resulted in great difficulty 
climbing and descending stairs, squatting, and kneeling.

ii.  Analysis

A decision by the Secretary is subject to revision on grounds 
of clear and unmistakable error.  A request for review of a 
Board decision for CUE may be initiated by the Board of its 
own motion or by the claimant.  38 U.S.C.A. § 7111; 38 C.F.R. 
§ 20.1400.  If the evidence establishes this error, the prior 
decision shall be reversed or revised.  38 U.S.C.A. § 5109A.  
The effective date for an award based on error under the 
provisions of 38 C.F.R. § 3.105(a) is the date from which 
benefits would have been payable if the corrected decision 
had been made on the date of the reversed decision.  
38 C.F.R. § 3.400(k) (2001).  

Under 38 U.S.C.A. § 7111, the Board has been granted for the 
first time the authority to revise or reverse a prior 
decision of the Board on the ground that it was based on CUE.  
A claim requesting review of a Board decision under the new 
statute may be filed at any time after the decision has been 
made.  This authority applies to any claim pending on or 
filed after the date of enactment of the statute, November 
21, 1997.  VAOPGCPREC 1-98, 63 Fed. Reg. 31263 (1998).

Motions for review of prior Board decisions on the grounds of 
CUE are adjudicated pursuant to the Board's Rules of Practice 
at 38 C.F.R. §§ 20.1400-1411 (2001).  Case law concerning the 
adjudication of claims alleging CUE established prior to the 
enactment of section 7111 is reflected in these regulations.

The motion alleging CUE in a prior Board decision must set 
forth clearly and specifically the alleged CUE or errors of 
fact or law in the Board decision, the legal or factual basis 
for such allegations, and why the result would have been 
different but for the alleged error.  38 C.F.R. § 20.1404(b).

All final decisions of the Board are subject to review under 
section 7111 except for those that have been appealed to and 
decided by a court of competent jurisdiction and decisions on 
issues that have been decided subsequently by a court of 
competent jurisdiction.  38 C.F.R. § 20.1400(b) (2001).  
Decisions of the Board are final when issued.  38 C.F.R. 
§ 20.1100 (2001); see 38 U.S.C.A. §§ 7103(a), 7104(a) (West 
Supp. 2001).  For purposes of motions brought under section 
7111, a final decision of the Board is defined as one which 
was appealable under Chapter 72 of Title 38, United States 
Code, or which would have been so appealable if such 
provision had been in effect of the time of the decision.  38 
C.F.R. § 20.1401(a) (2001).  Under 38 U.S.C.A. § 7266 (West 
1991), a decision of the Board is appealable to the United 
States Court of Appeals for Veterans Claims (Court) within 
120 days from the date of mailing of notice of the decision, 
provided that a notice of disagreement concerning an issue 
which was before the Board was filed with the agency of 
original jurisdiction on or after November 18, 1988.  
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 
102 Stat. 4105, 4122 (1988).

The March 26, 1987 decision of the Board was not appealable 
to the Court.  Thus, the March 26, 1987 decision of the Board 
became final.

Under the regulations governing review of Board decisions for 
CUE, CUE is defined as "[a] very specific and rare kind of 
error, of fact or law  Generally, either the correct facts, 
as they were known at the time, were not before the Board, or 
the statutory and regulatory provisions extant at the time 
were incorrectly applied."  38 C.F.R. § 20.1403(a); see also 
Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991) 
(defining CUE as an administrative failure to apply the 
correct statutory and regulatory provisions to the correct 
and relevant facts).

Disagreement as to how the facts were weighed or evaluated 
does not implicate the question of CUE.  38 C.F.R. § 
20.1403(d); see Thompson v. Derwinski, 1 Vet. App. 251, 253 
(1991) (mere misinterpretation of facts does not constitute 
CUE). The Secretary's failure to fulfill the duty to assist 
the claimant with the development of his claim does not 
constitute CUE.  38 C.F.R. § 20.1403(d); see Caffrey v. 
Brown, 6 Vet. App. 377, 384 (1994).  CUE does not include the 
otherwise correct application of a statute or regulation 
where, subsequent to the Board decision being challenged, 
there has been a change in the interpretation of the statute 
or regulation.  38 C.F.R. § 20.1403(e).  

To warrant revision of a Board decision on the grounds of 
CUE, there must have been an error in the Board's 
adjudication of the appeal which, had it not been made, would 
have manifestly changed the outcome of the adjudication.  In 
order for adjudicatory error to rise to the level of CUE, it 
must be error "that when called to the attention of later 
reviewers compels the conclusion, to which reasonable minds 
could not differ, that the result would have been manifestly 
different but for the error."  38 C.F.R. § 20.1403(a); see 
also Kinnaman v. Derwinski, 4 Vet. App. 20, 26 (1993) (error 
must be one that would have manifestly changed the outcome at 
the time that the error was made).  If it is not absolutely 
clear that a different result would have ensued, the error 
complained of is not CUE.  38 C.F.R. § 20.1403(c); see also 
Fugo v. Brown, 6 Vet. App. 40, 43 (1993) ("It [CUE] is a kind 
of error, of fact or of law, that when called to the 
attention of later reviewers, compels the conclusion, to 
which reasonable minds cannot differ, that the results would 
have been manifestly different but for the error."); Russell 
v.Principi, 3 Vet. App. 310, 313 (1992) (errors that would 
not have changed the outcome are harmless).  Thus, in order 
to constitute CUE, an error must be one that is manifestly 
determinative of the outcome of the underlying claim.

Review for CUE in a prior Board decision must be based on the 
record and the law that existed when the decision was made.  
38 C.F.R. § 20.1403(b)(1); see also Russell v. Principi, 3 
Vet. App. 310, 313-14 (1992), Porter v. Brown, 5 Vet. App. 
233, 235-36 (1993) (subsequently-developed evidence may not 
be considered). 

The statutory "benefit of the doubt" rule, see 38 U.S.C.A. 
§ 5107 (West 1991 and West Supp. 2001), does not apply to a 
motion to revise a Board decision on the basis of CUE.  38 
C.F.R. § 20.1411(a).

In the Motion, the Board decision of March 26, 1987 is 
challenged for CUE on two separate grounds.  The first ground 
is that the evidence of record at the time that the Board 
rendered its decision "clearly and undoubtedly" showed 
disability of both knees, and that at the very least the 
veteran should have been awarded a separate 10 percent 
evaluation for disability of the left knee under the 
provisions of 38 C.F.R. § 4.40.  It is asserted in the Motion 
that evaluations of at least 20 percent for the right knee 
disability and at least 10 percent for the left were 
warranted by the evidence.  The second ground is that in 
upholding the evaluations of 10 percent and noncompensable, 
respectively, for the right and left knee disabilities, the 
Board ignored the provisions of 38 C.F.R. § 3.344(a) 
pertaining to the conditions for reducing disability 
evaluations.

Mere disputes as to how the Board evaluated the evidence are 
not CUE.  38 C.F.R. § 20.1403(d).  In contrast, failure to 
consider evidence of record pertinent to the claim can be 
grounds for a finding of CUE in a decision of the Board.  38 
C.F.R. §  20.1403(a).  In the March 26, 1987 decision, the 
Board discussed in detail each of the evidentiary documents 
then of record that are cited by the Moving Party's 
representative in the Motion--as well as other relevant 
evidence not cited in the Motion.  This evidence was all 
dated in 1986 or thereafter.  The representative has not 
alleged in support of the Motion that the correct facts as 
they were known at that time were not before the Board when 
it rendered its March 26, 1987 decision or that the Board 
failed to consider evidence pertinent to the appeal.  See 38 
C.F.R. § 20.1403(a).  Although the Board decision did not 
discuss evidence prior to 1986, the Moving Party has not 
alleged that such failure materially changed the outcome.

The Moving Party's allegation that the evidence "clearly and 
undoubtedly" showed disability in both knees, is contradicted 
by several medical opinions to the effect that the veteran 
had no disability in the left knee.  In any event, such an 
allegation constitutes a dispute as to how the evidence was 
weighed and cannot rise to the level of CUE.

The Motion alleges that pertinent regulatory provisions 
extant at the time of the March 26, 1987 decision of the 
Board, specifically 38 C.F.R. § 4.40, were incorrectly 
applied.  In this respect as well, the Motion implicates the 
question of CUE.  Id.; see Oppenheimer, 1 Vet. App. at 372.

At the time of the challenged Board decision, as now, 38 
C.F.R. § 4.40 provided that 

[disability] of the musculoskeletal 
system is primarily the inability . . . 
to perform the normal working movements 
of the body with normal excursion, 
strength, speed, coordination and 
endurance.  It is essential that the 
examination on which ratings are based 
adequately portray the anatomical damage, 
and the functional loss, with respect to 
all these elements.  The functional loss 
may be due to . . . pain, supported by 
adequate pathology and evidenced by the 
visible behavior of the claimant 
undertaking the motion.  Weakness is as 
important as limitation of motion, and a 
part which becomes painful on use must be 
regarded as seriously disabled.

38 C.F.R. § 4.40 (1986)

In its March 26, 1987 decision, the Board analyzed the 
evidence of record dated from 1986, and determined the 
rating of each disability, in light of the factors described 
in this regulation.

For example, the Board reviewed evidence of functional loss 
due to pain and weakness contained in the medical 
documentation of record.  The Board discussed the Moving 
Party's complaints of pain in both knees and a finding of 
two-plus crepitus in the right knee documented in the report 
of the January 1986 VA examination; findings of marked 
tenderness upon compression of the right knee and of 
irregularity of the surface of the right patella at the 
junction with the femur (although not of a positive grind 
test - - a factor included among those enumerated by the 
representative in the Motion), and a diagnosis of probable 
early patellofemoral arthritis of the right knee documented 
in the April 1986 letter by R. Hawkins, M.D., to J. 
DiFranza, M.D. (a document mischaracterized by the 
representative in the Motion as one created by Dr. 
DiFranza).

The Board considered the report of the June 1986 
arthroscopic surgery performed upon the right knee and the 
specifics of that surgery (arthroscopy with arthroscopic 
abrasion arthroplasty of the patella and synovectomy of the 
parapatellar region), as well as the diagnosis set forth 
there of traumatic osteoarthritis of the right patella with 
synovitis; the Moving Party's complaints of difficulty 
executing certain movements involving use of one or both 
knees and of constant popping, grinding, and pain in his 
knees, the clinical observations that the Moving Party had 
right knee pain because of arthroscopic surgery and that he 
was walking with a limp and using a cane, and the findings 
of right quadriceps weakness, one-plus crepitus, and limited 
range of motion (0 to 60 degrees, see 38 C.F.R. § 4.71, 
Plate II (1986)) of the right knee, and the assessment of 
severe osteoarthritis of the right knee documented in the 
report of the VA examination conducted in July 1986 (which 
examination report was not among the items of evidence 
enumerated by the representative in the Motion); and the 
clinical observations that the Moving Party had difficulty 
executing movements involving use of one or both knees, the 
diagnosis of severe osteoarthritis in the right knee 
(apparently confirmed by x-rays) and of similar symptoms in 
the left knee (however, with normal x-rays) documented in 
the statements by R. Hawkins, M.D., dated in June and 
September 1986.

Thus, the Board not only reviewed thoroughly in the 
challenged decision the evidence of record dated from 1986, 
considering all relevant medical documents and summarizing 
their content at length, but also evaluated that evidence in 
light of the factors set forth in 38 C.F.R. § 4.40.  Indeed, 
with the exception of the documentation of a positive grind 
test for the right knee in the April 1986 letter by Dr. 
Hawkins, the detail pertinent to weakness, pain, and 
functional loss cited in the Board decision embraced and 
exceeded that cited in the Motion.  

It is clear that the Board did not explicitly note the 
applicability of 38 C.F.R. § 4.40.  However, given the 
findings of normal function in the left knee, the provisions 
of § 4.40 pertaining to functional impairment did not dictate 
that the left knee disability required a 10 percent 
evaluation.  The Board decision recognized that a 10 percent 
evaluation was being provided for the right knee, and noted 
that the range of motion reported in that knee, even during 
recuperation from surgery, was not so severe as to warrant 
more than a 10 percent evaluation under diagnostic codes 
referable to osteoarthritis.  See 38 C.F.R. § 4.71a, 
Diagnostic Codes 5260, 5261 (1986).  There was evidence of 
record to support a conclusion that the veteran did not have 
functional impairment that required an evaluation in excess 
of 10 percent for the right knee.  There were a number of 
reports showing that the veteran had mild or nonexistent 
functional symptoms in the right knee.  Therefore, the 
failure to explicitly consider the provisions of 38 C.F.R. 
§ 4.40, was not outcome determinative.

Furthermore, the Board did not apply the provisions of the 
schedule for rating disabilities in an erroneous manner in 
assigning the ratings that it did in its March 26, 1987 
decision.  See 38 C.F.R. § 20.1403(a).  CUE in this sense was 
not committed.  The Board correctly applied relevant 
diagnostic codes in evaluating the Moving Party's knee 
disabilities and in accordance with the requirements of 38 
C.F.R. § 4.40 (1986), considered relevant evidence of pain, 
weakness, and functional loss as part of that process.

The second allegation of CUE involves the Board's failure to 
apply the provisions of 38 C.F.R. 3.344(a).  However, those 
provisions were, and are, only applicable to ratings that had 
been in effect for five years or more.  Brown v. Brown, 5 
Vet. App. 413, 417-18 (1993), Smith v. Brown, 5 Vet. App. 
335, 339 (1993); 38 C.F.R. § 3.344(c) (1986).  In the instant 
case, the combined 20 percent evaluation had only been in 
effect from November 1, 1984 to May 30, 1986.  Since the 
regulation was not applicable, the failure to apply it could 
not be CUE.

For the foregoing reasons, the Board finds that the Moving 
Party has not demonstrated CUE in the  March 26, 1987 
decision of the Board.  Accordingly, the Motion is denied.


ORDER

CUE not having been found in the Board decision dated March 
26, 1987, the motion is denied.


		
	Mark D. Hindin
	Member, Board of Veterans' Appeals

IMPORTANT NOTICE:  We have attached a VA Form 4597B that tells 
you what steps you can take if you disagree with our 
decision.  We are in the process of updating the form to 
reflect changes in the law effective on December 27, 2001.  
See the Veterans Education and Benefits Expansion Act of 
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001).  In the 
meanwhile, please note these important corrections to the 
advice in the form:

? In the section entitled "Appeal to the United States 
Court of Appeals for Veterans Claims," you are no longer 
required to file a copy of your Notice of Appeal with 
VA's General Counsel.
? In the section entitled "Representation before VA," you 
no longer need to have filed a "notice of disagreement ... 
that led to the decision the Board has just reviewed for 
CUE ... on or after November 18, 1988" as a condition for 
an attorney-at-law or a VA accredited agent to charge 
you a fee for representing you.